This case is before the Authority on a
negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the negotiability
of seven proposals.

Proposal 1 precludes management from holding employees accountable for
work performance that is dependent on the action of other employees over whom
they have no control. We find that Proposal 1 directly and excessively
interferes with management's rights to direct employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute. Therefore, Proposal 1 is
nonnegotiable. Proposal 2, which requires the Agency to provide employees with
written notice of changes in procedures contained in reference manuals before
holding employees accountable for errors in connection with the use of such
manuals, is nonnegotiable. Proposal 3 prescribes how the Agency should express
an error rate in evaluating employees' job performance. We are unable to
determine which of two possible interpretations of Proposal 3 represents
the Union's intent. Therefore, we dismiss the petition for review as to
Proposal 3.

Proposal 4 requires the Agency to maintain a
separate record of certain specific performance-related information. Proposals
5 and 6 require the Agency to provide the Union with detailed reports of major
and minor errors of patent classifiers found by the Agency in the application
of its performance plan. We find that Proposals 4, 5, and 6 are negotiable.

Proposal 7, which requires the Agency to provide employees written
guidance as to what constitutes an error under the circumstances described in
the proposal and allows employees, if such guidance is not provided in their
performance plans, to assume that a patent assignment in the circumstances of
the proposal is not an error for evaluation purposes, is nonnegotiable.

II. Background

The Agency is responsible for the issuance of patents and the
registration of trademarks. The Agency employs approximately 65 patent
classifiers and 1700 patent examiners. Patent examiners examine patent
applications to ensure that the statutory requirements are met in order to
grant a valid patent. Patent classifiers are technically trained professional
employees who maintain an indexing system for classifying patents, called the
Patent Classification System (PCS), and ensure that patent applications are
assigned to the proper examiner for examination purposes. The PCS is designed
to "enable the quick retrieval of patents dealing with a particular area of
technology." Petition at 2.

In 1990, the Agency notified the Union of its
intent to change the performance appraisal plan for patent classifiers. In
response to the Agency's notice, the Union submitted proposals for negotiation
concerning the proposed changes in the classifiers' performance appraisal plan.
Only the proposals in this case remain in dispute.

III. Proposal 1

Section 23. Patent Classifiers

B. It shall be unreasonable to adversely evaluate a patent classifier
for failure to meet a particular performance standard if meeting the
performance standard is dependent upon the action of another employee over whom
the classifier has no control.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 1 restricts its ability to rate
employees under established performance standards. The Agency asserts,
therefore, that the proposal directly interferes with its rights to direct
employees and assign work under section 7106(a)(2)(A) and (B) of the
Statute.

According to the Agency, patent classifiers'
jobs involve two primary functions, project and post work. The Agency asserts
that both functions require that the "employee manage the work and follow-up
with other employees until the task is completed." Statement of Position
(Statement) at 3. As to project work, the Agency contends that this function is
reflected as project management in critical element 1 of the performance
appraisal plan (the Plan). See Petition, Attachment 3. The Agency states
that this function "requires the employee to perform as a team-leader or
quasi-supervisor." Id. According to the Agency, "the classifier
performing as team leader must direct a project, which includes having limited
responsibility for the work of other employees and monitoring the overall
progress of the project." Id. at 3-4. The Agency states that classifiers
who act as team leaders are rated on their overall management of a project.

The Agency asserts that the other function of
the patent classifier's job, post work, is reflected in critical elements III
and IV of the Plan. The Agency states that this function requires a patent
classifier to resolve problems as to where a patent application should properly
be assigned. According to the Agency, a patent classifier cannot simply send an
application to another employee for action, but must follow-up on the
application to determine its status and resolve problems connected with that
application in a timely manner. The Agency states that the "essence of the
[classifier] job, as reflected in the [performance] standards themselves, is
that the employee is responsible for monitoring the work of other employees and
ensuring its accuracy, and checking applications which may have been sent to
others to ensure that they are timely and accurately assigned." Id.
at 5.

The Agency contends that Proposal 1 is intended
to prevent the Agency from rating an employee on his or her efforts if the
performance standard also includes the work of another employee over whom the
employee has no control. The Agency states that, in negotiations over Proposal
1, "the Union made it clear that it objected to employees being responsible for
'hassling' other bargaining unit employees to follow-up on the work, and
specifically objected to employees being rated on these efforts." Id.
The Agency asserts that "this is the very nature of the classifier's job."
Id.

The Agency argues, therefore, that "the Union's proposal attempts to
alter the basic job requirements and performance standards as defined by
management" and is nonnegotiable under section 7106(a)(2)(A) and (B) of the
Statute. Id.

The Agency disputes the Union's claim that
Proposal 1 is similar to a proposal found negotiable in Patent Office
Professional Association and Patent and Trademark Office, 25 FLRA 384,
402 (1987) (POPA), aff'd mem. No. 87-1135 (D.C. Cir. Mar. 30,
1988) (per curiam). The Agency argues that the proposal in POPA, which
"dealt exclusively with a timeliness standard[,]" is inapposite to this case
because Proposal 1 goes beyond the application of a timeliness standard and
instead concerns the content of the standards used to evaluate classifiers.
Id. at 6.

The Agency also contends that Proposal 1 is not an appropriate
arrangement under section 7106(b)(3) of the Statute "because there is no
adverse [e]ffect from the exercise of management's right to evaluate employees
on an aspect of their job responsibilities." Id. at 9. The Agency argues
that even if Proposal 1 is intended to ameliorate some adverse affect, it
excessively interferes with management's rights to evaluate employees on a
critical element and to direct employees and assign work.

2. Union

The Union asserts that "[t]he [A]gency presents a description of the job
of classifiers which, at least as to post classifiers, would be barely
recognizable." Response at 4. The Union asserts that a post classifier's
job "definitely would not involve any monitoring of the work of other
employees, nor would it be characterized as checking [up on] the accuracy
of the work of others." Id. at 5. According to the Union, "[p]ost
classifiers are expected to relate to each other as peers. There is not even
the hint of a team leader-subordinate relationship among them." Id.

The Union states that the situation is different for project
classifiers because "at the higher grades, they are truly team leaders."
Id. However, the Union argues that there is inequity in these
classifiers' performance standards because of the "unequal human resources they
are given." Id. The Union asserts that "[t]he differences in human
resources affect the project classifier's ability to get a high rating under
both the quality and quantity standards by which they are rated." Id.
The Union states that the productivity of a project classifier is measured
against a performance standard that takes into account the number of staff
hours spent on original patents. According to the Union, "[t]he staff hours
that count against a particular project are those of the classifier himself
plus all the others working on the project." Id. at 4. The Union
asserts that "[t]he proposed performance appraisal plan treats the staff hours
used [on a project] by an expert the same as the staff hours used by novices."
Id. The Union argues that, as a result of this practice, "the rating
assigned to a project classifier may be grossly inaccurate." Id.

The Union asserts that "[t]he fundamental
performance appraisal issue faced by classifiers is that their rating may be
based more on the work of others than on their own work." Id. at 6. The
Union contends that it is "inaccurate to evaluate the timeliness of a
classifier's performance when the majority of the time counted against the
classifier is consumed by other employees over whom the classifier has no
control." Id. at 3.

The Union contends that Proposal 1 is similar to
a proposal found negotiable in POPA. According to the Union, the
proposal in POPA differs from the current proposal only "in that the
earlier proposal applied to examiners and was limited to a standard of
timeliness." Petition at 4. The Union asserts that, "[e]xcept for the
broadening of the coverage of [Proposal 1], it is intended to have
substantially the same meaning as the [proposal in POPA, 25 FLRA at
402]." Id.

The Union argues that Proposal 1 should be
considered a procedure under section 7106(b)(2) of the Statute. The Union also
asserts that because the negotiability of proposals like Proposal 1 was fully
resolved in POPA, that case "should be treated as resjudicata with respect to [Proposal 1]." Response at 7.

The Union further asserts that Proposal 1 is an appropriate arrangement
for employees who are adversely affected by the exercise of management's rights
to assign work and direct employees. The Union contends that post classifiers
who perform their work assignments quickly are adversely affected because they
"may be downrated as to timeliness even though the delays which form the basis
of the rating were caused by other employees over whom [the post classifiers]
have no control." Id. at 8. According to the Union, Proposal 1 "is
intended to provide a remedy for an employee who has been adversely affected by
an inaccurate rating resulting from management's measurement of the work of
others, and not the work of the employee being rated."
Id. at 4.

The Union also contends that the statutory
requirement that performance standards "'permit the accurate evaluation of job
performance on the basis of objective criteria[,]' . . . is violated when
multiple employees are assigned to a particular work project, and the [A]gency
fails to at least attempt to segregate the separate contributions of each
employee when evaluating that employee." Id. (quoting 5 U.S.C.
§ 4302(b)(1)). According to the Union, "[e]mployees who do not
receive the statutory benefit of an accurate evaluation are those who are
adversely affected." Id. The Union states that it does not intend to
"insulate [employees] from the requirement for meeting performance standards
when unforeseen events occur . . . but rather [seeks] to insure that
the work contributions of each employee will be separately evaluated, so that
an employee will be more directly accountable and[,] consequently[,] rewarded
for his or her own work." Id. at 8-9.

B. Analysis and Conclusions

Proposal 1 concerns patent classifiers in the
Agency's classification operation. The parties describe patent classifiers'
jobs in different ways. The Union explains that there are two types of
classifiers, project and post classifiers. According to the Union, project and
post classifiers perform different job responsibilities. On the other hand, the
Agency explains that a classifier's job involves two primary functions, project
and post work. Thus, the Union appears to claim that there are two job titles
for classifiers, while the Agency appears to claim that there is only one job
title for classifiers, with two primary functions.

In the Plan for classifiers, the critical
performance elements include, among others, elements rating employees on
project and post (system administration) work. See Petition, Attachment
3. The Plan shows that a classifier is responsible for performing both project
and post work. In our view, the Plan's description of classifiers' job elements
supports the Agency's explanation of their job. Because the Agency's
description of a classifier's job is consistent with the Plan, we will adopt
the Agency's explanation of a classifier's job for purposes of this decision.
We conclude, therefore, that a classifier's job encompasses both project and
post work. Because the classifier job does not involve two different job
titles, but different functions of a position, we further find that the
proposal concerns how the performance standards will be used to evaluate
classifiers on the completion of the different functions of their position when
they are assigned to those functions.

As to the performance standards applicable to
patent classifiers, the Plan indicates that both functions of their jobs
require them to coordinate the work of other Agency personnel. For example,
under critical element I of the Plan concerning the project function, employees
are evaluated on, among other things, their ability to "[p]lan[], manage[] and
monitor[] the project[,]" and "[p]rovide[] technical supervision and check[]
the work of others." Petition, Attachment 3. Under critical elements III and IV
of the Plan, which relate to post work, employees are evaluated on, among other
things, their ability to "[s]ettle [patent] application disputes[,]" and
"[c]onsult/cooperate with examiners and other classifiers." Id. In
short, the performance standards for patent classifiers in both functions of
their jobs measure the ability of classifiers to coordinate the work of other
employees.

Based on this interpretation of patent
classifiers' performance standards, we find that Proposal 1 would limit
management's ability to hold classifiers accountable for their performance in
situations where the performance of a particular job requirement involves the
coordination of the work of other employees. That is, the proposal would limit
management's ability to evaluate patent classifiers' ability to coordinate the
work of other employees by preventing management from assessing how well
classifiers are able to facilitate and expedite the work of employees over whom
they have no control. The proposal would, thus, constitute a substantive
limitation on the Agency's ability to determine the content of patent
classifiers' performance standards.

Proposals which restrict an agency's right to
determine the content of performance standards and critical elements directly
interfere with management's rights to direct employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute. See, for example,
National Federation of Federal Employees, Local 1974 and U.S. Department of
Veteran Affairs, Regional Office, Portland, Oregon, 46 FLRA 1170, 1172
(1993) (VA, Portland), petition for review filed, No. 93-1201
(D.C. Cir. Mar. 11, 1993); Patent Office Professional Association and U.S.
Department of Commerce, Patent and Trademark Office, Washington, D.C., 47
FLRA 10, 35 (1993) (PTO), petition for review filed, No. 93-1255
(D.C. Cir. Apr. 2, 1992). Because Proposal 1 would impose a substantive
limitation on the Agency's ability to determine the content of its performance
standards, we find, consistent with VA, Portland and PTO, that
the proposal directly interferes with management's rights to direct employees
and assign work under section 7106(a)(2)(A) and (B) of the Statute. SeealsoNational Treasury Employees Union and U.S. Department of the
Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570, 580-81
(1991) (Customs Service) (provision requiring that "in the application
of performance standards," management take into account certain mitigating
factors held to directly interfere with management's rights to direct employees
and assign work).

We reject the Union's contention that Proposal 1
constitutes a procedure under section 7106(b)(2) of the Statute. Proposals that
directly interfere with the exercise of a management right are not negotiable
as procedures under section 7106(b)(2). National Federation of Federal
Employees, Local 1214 and Department of the Army, Health Services Command,
Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA
1181, 1188 (1991); Department of Defense v. FLRA, 659 F.2d 1140, 1151-52
(D.C. Cir. 1981), cert. denied 455 U.S. 945 (1982). Because we have
found that Proposal 1 directly interferes with management's rights to direct
employees and assign work under section 7106(a)(2)(A) and (B) of the Statute,
we conclude that the proposal does not constitute a procedure under section
7106(b)(2). Consequently, unless Proposal 1 is an appropriate arrangement under
section 7106(b)(3) of the Statute, as the Union argues, it is nonnegotiable.

To determine whether a proposal is an appropriate arrangement, we first
decide whether the proposal is intended as an arrangement for employees
adversely affected by the exercise of a management right. National
Association of Government Employees, Local R14-87 and Kansas Army National
Guard, 21 FLRA 24, 31 (1986) (KANG). In deciding whether a proposal
constitutes an arrangement, we examine whether it is reasonably foreseeable
that some of the employees to whom the proposal applies would be adversely
affected by management's exercise of its rights under the Statute. SeeUnited States Department of the Treasury, Office of the Chief Counsel,
Internal Revenue Service v. FLRA, 960 F.2d 1068, 1071 (D.C. Cir. 1992)
(Office of the Chief Counsel, IRS). If we determine that the proposal is
an arrangement, we examine whether the arrangement is appropriate. To make this
determination, we examine the competing practical needs of employees and
managers. KANG, 21 FLRA at 31-32.

Applying the analytical framework established by
KANG, we find that the proposal does not constitute an appropriate
arrangement under section 7106(b)(3) of the Statute.

For purposes of this decision, we will assume, without deciding, that
the proposal constitutes an arrangement. See, for example,
American Federation of Government Employees, Local 1760 and U.S. Department
of Health and Human Services, Social Security Administration, Office of
Hearings and Appeals, Region II, 46 FLRA 1285, 1289 (1993). Consequently,
we next consider whether the proposed arrangement is appropriate within the
meaning of section 7106(b)(3) of the Statute. SeeCustoms
Service, 40 FLRA at 582; National Federation of Federal
Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities
Engineering Command, Western Division, 36 FLRA 834, 841 (1990); West
Point Elementary School Teachers Association, NEA and United States Military
Academy, West Point Elementary School, 34 FLRA 1008, 1011-12 (1990). We
must determine, therefore, whether the proposed arrangement excessively
interferes with management's rights under the Statute. KANG, 21 FLRA at
31-32.

In balancing the competing interests of the employees and the Agency,
we find that some of the patent classifiers to whom Proposal 1 applies may be
adversely affected as a result of their performance appraisals in the area of
their job responsibility that involves coordination and facilitation of the
work of other employees. Proposal 1 would benefit classifiers who may be
subject to adverse appraisals in that area by not allowing those classifiers to
be adversely evaluated on their facilitation and expediting of the work of
employees over whom they have no control. This benefit is significant for
employees because performance appraisals are the basis for rewarding,
reassigning, promoting, reducing in grade, retraining and removing employees.
Thus, the rating that an employee receives in his or her performance appraisal
has far-reaching consequences in the employee's employment relationship.
Specifically, an employee whose performance is determined to be unacceptable on
one or more critical elements is subject to reduction in grade or removal.
See 5 C.F.R. § 432.106. An employee whose performance
rating is less than fully successful is subject to having his or her
within-grade increase withheld. See 5 C.F.R. § 531.404. Further, an
employee's rating of record is one of the factors that determines an employee's
retention standing when determining who will be affected by a
reduction-in-force. See 5 C.F.R. §§ 351.501-504. Also, an
employee's performance appraisal can determine the employee's success when
competing with other employees for promotion and career enhancement
opportunities. See, for example, American Federation of
Government Employees, Local 3509 and U.S. Department of Health and Human
Services, Social Security Administration, Greenwood, South Carolina
District, 46 FLRA 1590, 1599-1602 (1993).

However, although Proposal 1 offers a
significant benefit to employees, it also places a severe restriction on
management's rights to direct employees and assign work. As we found above, the
functions of patent classifiers' positions require them to coordinate the work
of other Agency personnel in order to accomplish the work assigned. The
proposal would limit the Agency's ability to evaluate how well classifiers are
able to coordinate the work of other personnel because it would preclude the
Agency from holding classifiers accountable if accomplishment of the task
involved working with employees over whom the classifier has no control. The
proposal would, therefore, severely hamper the Agency's ability to evaluate
classifiers on that particular function of their position. We find that the
burden imposed by the proposal on management's right to determine the content
of the standards by which it will evaluate the performance of patent
classifiers outweighs the benefit of the proposal to employees. We conclude,
therefore, that the proposal excessively interferes with management's rights to
direct employees and assign work under section 7106(a)(2)(A) and (B) of the
Statute and does not constitute an appropriate arrangement within the meaning
of section 7106(b)(3) of the Statute.

In reaching this conclusion, we note that this case is distinguishable
from VA, Portland, PTO, and CustomsService, where we held that proposals which required an agency to adjust
or modify its performance standards to compensate for matters beyond employees'
control constituted appropriate arrangements under section 7106(b)(3) of the
Statute. The records in those cases, unlike the record in this case, did not
show that the employees were required to coordinate the performance of their
work with others. Consequently, we find that Proposal 1 is distinguishable from
the proposals involved in VA, Portland, PTO, and Customs
Service. Also, we find that this case is distinguishable from POPA.
In that case, the Authority found, among other things, that a proposal which
specified the circumstances under which unit employees would not be adversely
affected for failure to meet timeliness standards did not concern the content
of the timeliness standards, but rather concerned the application of such
standards to the differing work situations of employees and, therefore, was
negotiable. In this case, as discussed above, the proposal concerns the content
of classifiers' performance standards. Because the proposal concerns the
content of the employees' performance standards, we find that POPA is
inapposite.

Accordingly, we conclude that Proposal 1 is nonnegotiable.

IV. Proposal 2

Section 23. Patent Classifiers

D. Any classification practice or procedure which is set forth in the
Manual of Patent Examining Procedure (MPEP), the Development and Use of Patent
Classification Systems (DUPAC), or the United States Patent Classification
Practice and Procedure (USPCPP) shall not be considered an error unless the
employee was given timely written notice of a change in the practice or
procedure.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 2 directly interferes with the
Agency's ability to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute. According to the Agency, under Proposal
2, "if an employee follows a procedure found in one of three listed reference
manuals, then the employee cannot be evaluated as having made an error unless
the Agency gave specific written notice of a 'change' in that practice."
Statement at 10. The Agency asserts that the proposal's plain language and the
Union's stated intent demonstrate that Proposal 2 "improperly attempts to
define 'error' as it is used in the performance standards." Id.
at 10-11.

The Agency contends that there are also unwritten work rules and
procedures and other manuals or documents which are known to employees. The
Agency asserts that the proposal would effectively void all rules and
procedures which, although well known to employees, conflict in some way with
an outdated provision of a manual listed in the proposal, unless the Agency
affirmatively gave a subsequent written disclaimer of requirements listed in
the manual. The Agency further asserts that the proposal would allow employees
to ignore clear work instructions from their supervisors which were
inconsistent in any way with one of the cited manuals, unless the instruction
was put in writing. The Agency argues that Proposal 2 would "preclude the
Agency from considering certain mistakes in evaluating the accuracy of [an
employee's] work[.]" Id. at 12. The Agency asserts that Proposal 2
is not an appropriate arrangement under section 7106(b)(3) of the Statute
because "no adverse effect can be gleaned from management giving an employee
verbal work instructions." Id.

2. Union

According to the Union, "the documents listed in
[Proposal 2] contain the most basic, fundamental and important rules and
procedures that classifiers are required to follow." Petition at 5. The Union
states that when a classifier is cited as having made an error, "that error is
defined as a violation of one of the statements in the listed documents."
Id. The Union asserts that the Agency "has established the three listed
manuals as the core documents that define what a patent classifier is expected
to do." Response at 10. The Union states that Proposal 2 is intended "to
provide definiteness in the instructions given to classifiers" and is not an
"attempt at defining what is meant by 'error' under the performance standards."
Id. at 9-10. The Union asserts that Proposal 2 merely provides for
written notice of changes in the written rules contained in the basic manuals
cited in the proposal.

The Union contends that Proposal 2 does not require that all Agency work
rules be in writing, but "indirectly requires management to provide a written
countermand only to the work rules set forth in these manuals." Id. The
Union also states that Proposal 2 "does not apply to other written directives
or any oral directives." Id. The Union states that the Authority has
held that a proposal that required an agency "'to provide written guidance and
reference materials necessary for the satisfactory performance of an employee's
job'" was a negotiable procedure. Id. at 11 (quoting American
Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 28 FLRA 714, 720 (1987) (OPM) (the Authority held that
part (a) of Proposal 4, which required the agency to provide its employees with
guidance and reference materials necessary to perform their jobs in a
satisfactory manner, would, in essence, have the effect of requiring an agency
to comply with the legal requirement in 5 U.S.C. §4302 that
performance standards be communicated to employees and, therefore, did not
directly interfere with management's rights)). The Union argues that Proposal 2
is a procedure, under section 7106(b)(2) of the Statute, that requires written
countermands to prior written instructions.

The Union also argues that Proposal 2 is an appropriate arrangement for
employees who are adversely affected by the exercise of management's right to
direct employees. The Union states that "[t]he adverse effect is the need to
document and later prove that prior written instructions have been orally
countermanded whenever the oral countermand is relevant to an evaluation, but
is not known to the supervisor doing the evaluation." Id. at 11.
The Union also asserts that the uncertainty experienced by employees when they
receive such oral countermands "is itself a stressful adverse effect."
Id. The Union argues that Proposal 2 overcomes the adverse effects and
benefits an employee "by enhancing the degree of certainty and definiteness of
the instructions the employee is expected to follow." Id. The Union
asserts that Proposal 2 does not have any significant adverse consequences for
management.

B. Analysis and Conclusions

According to the Union, the Agency "has established the three listed
manuals as the core documents that define what a patent classifier is expected
to do." Response at 10. According to the Agency, "[t]he cited
manuals . . . are not the only resources for work practices and
procedures. There are many unwritten work rules and procedures, and many found
in other manuals or documents, which are well known to the employees."
Statement of Position at 11. The Agency also states that at times employees are
given "clear work instructions" by their supervisors that conflict in some way
with the cited manuals. Id. The Agency asserts, and the Union denies,
that this proposal would define what constitutes an error for evaluation
purposes.

While the proposal does not specifically define what constitutes an
error for purposes of performance evaluation, it does prevent the Agency from
holding an employee accountable for his or her work performance in certain
circumstances where the employee follows a practice or procedure prescribed in
the three cited manuals notwithstanding the fact that a different practice or
procedure is called for based on other authorities that are known to the
employee. That is, under the proposal, the employee's action may not be
considered an error unless the employee was given timely written notice of a
change in the practice or procedure that was contained in the three cited
manuals. The proposal is not limited to requiring that the employee be informed
in writing that a procedure or practice contained in the three manuals has been
countermanded but prohibits the Agency from holding employees accountable for
their actions in the absence of a specific written countermand.

It is well established that management's rights to direct employees and
assign work under section 7106(a)(2)(A) and (B) of the Statute include the
rights to supervise employees and determine the quantity, quality, and
timeliness of employees' work products and to establish employees' work
priorities. See, for example, National Association of
Government Employees, Local R14-52 and U.S. Department of Defense, Defense
Finance and Accounting Service, Washington, D.C., 45 FLRA 910, 913
(1992) (Defense Finance and Accounting Service); National Treasury
Employees Union and Department of the Treasury, Bureau of the Public Debt,
3 FLRA 769, 775-76 (1980) (Public Debt), aff'd 691 F.2d
553 (D.C. Cir. 1982). The establishment of critical elements and performance
standards is among the ways that management supervises employees and determines
the quantity, quality, and timeliness of work required of employees and
constitutes an exercise of management's rights to direct employees and assign
work. See, for example, Public Debt, 3 FLRA at
775-76; seealsoDefense Finance and Accounting Service,
45 FLRA at 913-14 (management's rights to direct employees and assign work
extend to the establishment of job requirements in the form of productivity or
performance standards that serve as the basis for encouraging and rewarding
successful performance and discouraging and remedying performance that is
unacceptable). The evaluation of employee performance is an exercise of
management's rights to direct employees and assign work. SeeAmerican
Federation of Government Employees, AFL-CIO, Local 1760 and Department of
Health and Human Services, Social Security Administration, 28 FLRA
160, 169 (1987). Proposals that prohibit management from holding employees
accountable for work performance directly interfere with the rights to direct
employees and assign work. See, for example, National Treasury
Employees Union and U.S. Department of Health and Human Services, Office of
Hearings and Appeals, 44 FLRA 293, 300 (1992).

Proposals that merely require that an agency
provide employees with documentation and information relating to the exercise
of a management right and do not place any substantive limitations on the
exercise of those rights generally are negotiable. See, for
example, National Treasury Employees Union and U.S. Department of Health
and Human Services, Social Security Administration, Office of Hearings and
Appeals, Falls Church, Virginia, 47 FLRA 705, 718 (1993) (Provisions 2
and 3, which were limited to requiring that the agency maintain and provide to
employees documentation supporting performance appraisals and ratings and were
silent with respect to the consequences of any failure to comply with that
requirement, were procedures negotiable under section 7106(b)(2) of the
Statute.); National Treasury Employees Union and U.S. Department of the
Treasury, Customs Service, Washington, D.C., 46 FLRA 696 (1992)
(Provision 22, which, among other things, required that supervisors prepare
narratives with examples of performance, did not interfere with management's
right to direct employees and assign work); National Treasury Employees
Union and U.S. Nuclear Regulatory Commission, Washington, D.C.,
43 FLRA 1279, 1292-93 (1992) (Proposal 2, which requires rating and
ranking officials to prepare written evaluations of all applicants for a
position, found to constitute a negotiable procedure); American Federation
of Government Employees, AFL-CIO, Local 446 and U.S. Department of the
Interior, National Park Service, Blue Ridge Parkway, Asheville, North
Carolina, 43 FLRA 836, 844-45 (1991) (Proposal requiring that a
supervisor document the basis for his or her suspicions prior to deciding to
have an employee tested for use of illegal drugs was procedural in nature.).
However, proposals that bar an agency from taking an action that constitutes a
protected exercise of its management rights based on a failure to comply with a
procedural requirement directly interfere with the relevant rights. See,
for example, American Federation of Government Employees, Local 3295
and U.S. Department of the Treasury, Office of Thrift Supervision,
44 FLRA 63 (1992) (Office of Thrift Supervision) (Proposal, which
prohibited the agency from using information that had not been provided to an
employee to adversely affect the employee's performance rating, directly
interfered with the agency's rights to direct employees and assign work and to
discipline employees.). CompareNational Federation of Federal
Employees, Local 1438 and U.S. Department of Commerce, Bureau of the Census,
Jeffersonville, Indiana, 47 FLRA 812 (1993) (Provision, which
established a standard of timeliness governing the agency's completion of the
steps of the disciplinary process but did not bar the agency from taking
disciplinary action if that standard was not met, did not directly interfere
with the agency's right to discipline employees.). Proposal 2 is not limited to
requiring that the Agency provide employees with documentation and information
concerning performance matters but bars holding employees accountable for their
performance if "timely written notice of a change in the practice or procedure"
contained in the three specified manuals has not been provided.

The exercise of management's rights under section 7106(a)(2) is subject
to applicable laws. See, for example, United Power Trades
Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla,
Washington, 44 FLRA 1145, 1158-60 (1992) (Corps of Engineers, Walla
Walla). Thus, if Proposal 2 merely incorporated into the contract a
requirement imposed by the laws that govern performance appraisal,
5 U.S.C. §§ 4301-4305, it would be negotiable. Seeid. (Proposal 3 was negotiable because it incorporated permissible
statutory limitations on the establishment of performance standards.). Based on
the reasons that follow, we find that Proposal 2 is not confined to
incorporating applicable statutory limitations into the contract.

Under 5 U.S.C. § 4302 performance
standards and critical elements for an employee's position must be communicated
to employees. However, that section does not prohibit an error from being
treated as such simply because an employee has not been informed ahead of time
that a particular action would constitute an error. In this regard, in the
context of actions that are based on unacceptable performance taken pursuant to
5 U.S.C. § 4303, section 4302 requires that employees be
informed of deficiencies in their performance during the appraisal period and
given an opportunity to improve. That is, a performance standard may be
"fleshed out and implemented in detail" during an improvement period undertaken
to provide an employee whose performance has been determined as unsatisfactory
with an opportunity to demonstrate acceptable performance prior to instituting
a performance-based action. Rogers v. Department of Defense Dependents
Schools, 814 F.2d 1549, 1553 (Fed. Cir. 1987) (Rogers v. DODDS);
DePauw v. U.S. International Trade Commission, 782 F.2d 1564, 1566
(Fed. Cir. 1986) (DePauw v. ITC); Wilson v. Department of Health and
Human Services, 770 F.2d 1048, 1056 (Fed. Cir. 1985) (Wilson v.
DHHS). See alsoChaggaris v. General Services Administration,
49 MSPR 249, 254 (1991) (Chaggaris v. GSA); Williams v.
Department of Health and Human Services, 30 MSPR 217, 220 (1986)
(Williams v. DHHS) ("It is true that an agency may give content to an
employee's written performance standards, thereby correcting certain
deficiencies in the standards, by informing the employee of the specific
requirements and application of the standards to her work situation through
oral counselings, performance improvement plans, and the evaluation process.");
Donaldson v. Department of Labor, 27 MSPR 293, 298 (1985)
(Donaldson v. Labor) ("[A]n agency may satisfy the employee's rights
under 5 U.S.C. § 4302(b)(1), (2), and (6), by communicating to
the employee the standards he must meet in order to be evaluated as
demonstrating performance at a level [that] is sufficient for
retention. . . . [Those standards] must be sufficiently specific
to provide a firm benchmark toward which the employee must aim his performance,
and not an elusive goal [that] the agency may find the employee met or failed
to meet at its pleasure. Such communication may occur in the PIP [performance
improvement plan], in counseling sessions, in written instructions, or in any
manner calculated to apprise the employee of the requirements against which he
is to be measured."). However, fleshing out a standard may not amount to
rewriting or changing the standard. SeeThompson v. Farm Credit
Administration, 51 MSPR 569, 577-78 (1991); Williams v. DHHS,
30 MSPR at 219-20.

Proposal 2 places a general prohibition on
considering any classification practice or procedure an error if it is set
forth in the three specified manuals. By its terms, the performance appraisal
plan that the proposal addresses, which was submitted by the Union, does not
explicitly require compliance with those manuals as a general matter. Petition,
Attachment 3. A review of that plan shows that it consists of seven critical
elements, several of which require evaluation of the quality of the employee's
work. Only one of those critical elements, Element IV, explicitly refers to the
DUPACS, MPEP and the U.S. Patent Classification Practice and Procedure--the
three manuals specified in the proposal.(2) Also submitted with the petition were "Guidelines" for rating
each of the seven elements. Id. The Guidelines for some of the elements
make reference to the DUPACS. However, the Guidelines are not incorporated into
the performance appraisal plan itself; rather, their express purpose is to
assist "SPCs" in rating Classifiers on the element to which they apply.(3) In view of the fact that the scope
of the proposal is broader than Element IV, we find that it is not limited to
circumstances that would amount to the Agency effecting a change in the written
performance standards.

In view of the fact that Proposal 2 is not limited to requiring that
the Agency exercise its management rights in accordance with the requirements
of 5 U.S.C. § 4302, we conclude that it directly interferes with
management's rights to direct employees and assign work.(4) In reaching this conclusion, we
note that Proposal 2 is distinguishable from Proposal 4 in American
Federation of Government Employees, AFL-CIO, General Committee of AFGE for SSA
Locals and Social Security Administration, 23 FLRA 329, 333-34 (1986)
enforced sub nom. FLRA v. Social Security Administration,
No. 87-1118 (D.C. Cir. Sept. 22, 1988). The Authority found that
Proposal 4, which provided that errors involving judgmental or
discretionary issues were for informational purposes only, was negotiable
because it was limited to circumstances in which the employee was free to
choose among alternative courses of action that had been identified as
acceptable by management. Proposal 2 is not so limited. Additionally, we find
that Proposal 2 is distinguishable from part (a) of Proposal 4 in OPM,
28 FLRA at 720, on which the Union relies. Part (a) was limited to
requiring that the agency provide employees with written guidance and reference
materials necessary to perform their jobs in a satisfactory manner and did not
bar holding employees accountable for their performance in the event of a
failure to provide such guidance and materials.

Now we turn to the Union's assertion that
Proposal 2 is negotiable as an appropriate arrangement under section 7106(b)(3)
of the Statute. To do this, we apply the analytical framework established in
KANG, 21 FLRA at 31-33.

In this case we will assume without deciding that Proposal 2 is an
arrangement. However, for the reasons that follow we find that it excessively
interferes with management's rights to direct employees and assign work. This
proposal would offer significant benefits to employees who are confronted with
conflicting work rules. The proposal would shield them from having their choice
of action considered an error as long as they chose a practice or procedure
that accorded with the three cited manuals absent a written countermand to
those practices or procedures and would protect them from any negative effects
that errors could have on their performance appraisals. Thus, the proposal
would eliminate the risk that employees incur when they act in the face of
conflicting work rules and would afford them more security and certainty in
their work environment.

However, the proposal imposes a burden on management by preventing it
from holding employees accountable for their work performance in all instances
when they applied a classification practice or procedure set forth in the cited
manuals regardless of the circumstances involved. For example, it does not
permit consideration of the extent to which a reasonably competent professional
should recognize that a different choice of practice or procedure is called
for. Moreover, even when an employee has been advised orally of a change in
procedures, an employee cannot be held accountable for following the procedure
that has been countermanded. It might be argued that the Agency can easily
escape the burden by providing written countermands to the policies and
practices contained in the three manuals. However, this does not take into
consideration instances where employees have been given specific oral
instructions or where the Agency is dependent on employees to bring to its
attention the fact that a circumstance has arisen in which existing work rules
conflict or an exception to the practices and procedures in the three manuals
is called for.(5) Thus, while the Agency bears the
major burden for providing employees with comprehensive and nonconflicting
guidelines and instructions regarding work practices and procedures, it is
unreasonable to expect the total elimination of conflicts and deficiencies.
Moreover, it is reasonable to expect employees to bear some responsibility for
recognizing the existence of conflicts and the need for augmentation or
clarification and seeking guidance and instructions to resolve such problems.

Because Proposal 2 would immunize employees from
accountability for their work performance without regard to the circumstances
involved, we find that it imposes a significant burden on management's right to
direct employees and assign work. We further find that the burden imposed on
management's rights outweighs the benefit afforded employees and that this
proposal excessively interferes with management's rights to direct employees
and assign work. Consequently, we conclude that Proposal 2 is not an
appropriate arrangement within the meaning of section 7106(b)(3).
CompareCorps of Engineers, Walla Walla, 44 FLRA at 1172-73
(Proposal that would immunize employees from discipline for following the
second of two conflicting orders, without regard to the circumstances involved,
excessively interfered with management's right to discipline employees.).

In concluding that Proposal 2 excessively
interferes with management's rights to direct employees and assign work, we
find that this proposal is distinguishable from Provision 11 in PTO. In
concluding that Provision 11 constituted an appropriate arrangement, we found
that the burden placed on the agency to avoid appraising employees on matters
outside their control was slight in view of the fact that the agency retained
the discretion to establish performance elements and standards reflecting the
work for which employees are responsible. 47 FLRA at 36. We find that
Proposal 2 imposes a more significant burden on management. In particular,
Proposal 2 would require the Agency, as a condition to holding employees
accountable for their work performance, to assume responsibility for providing
employees with written instructions resolving any conflicts with the work
practices and procedures set forth in the three cited manuals. This
responsibility would exist even in circumstances where the Agency had
specifically instructed employees orally as to the preferred practice or where
the Agency was dependent upon employees to alert it to the existence of a
conflict in their individual work situations regardless of whether the employee
had done so.

Accordingly, we conclude that Proposal 2 is nonnegotiable.

V. Proposal 3

Section 23. Patent Classifiers

F. Error rates for a Classifier shall be expressed as a fraction in
which the denominator is the total number of applications worked on or the
total number of markings required and the numerator is the actual number of
applications or markings found to have an error, respectively.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 3 directly
interferes with management's rights to direct employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute. Citing Authority precedent, the
Agency asserts that these rights encompass the right to determine the quantity,
quality, and timeliness of employees' work.

The Agency states that its performance standards establish error rates
to measure employees' performance. The Agency notes that the error rates are
applicable to the performance standards in three critical elements of the Plan.
The Agency asserts that "[t]he total number of documents on which an employee
might work in these three critical elements would average between 10,000 [and]
15,000." Statement at 13 (footnote omitted). According to the Agency,
management evaluates employees' performance based on a sample of that work.
Thus, under the Plan, the Agency determines an employee's error rate by
evaluating only a sample of the employee's total work product.

The Agency contends that Proposal 3 directly interferes with
management's rights under section 7106(a)(2)(A) and (B) to determine the
quantity, quality, and timeliness of work "because it attempts to define the
error rate by which performance will be evaluated under the performance
standards." Id. at 12-13. The Agency states that Proposal 3 makes the
denominator in the error rate the total number of documents worked on by a
classifier and "thus requires that the error rate be based on a 100 [percent]
sample of the [classifier's] work." Id. at 13. The Agency notes that
"[a]lternatively, if the Agency does not choose to review 15,000 documents per
employee per year, the standard would no longer be an error rate but rather a
number count of errors." Id. at 14 (footnote omitted). The Agency
acknowledges that under Proposal 3, "[t]he Agency would be free to set the
number of permissible errors[.]" Id. at 14. However, the Agency argues
that because Proposal 3 only allows the Agency to set the number of
permissible errors, instead of the error rate, in all instances where
the Agency samples less than 100 percent of a classifier's total work, Proposal
3 "would re-define the performance standard different from what the Agency
desired or established" and, thereby, would directly interfere with
management's rights under section 7106(a)(2)(A) and (B) of the Statute.
Id.

2. Union

The Union states that Proposal 3 is intended to provide the methodology
for making performance evaluations. The Union asserts that:

[t]here are two basic ways in which the error rates of the classifier
can be expressed: first, an error rate can be expressed as a number of errors
divided by the number of work samples reviewed or second, an error rate
can be expressed as a number of errors divided by the total number of units
of work credited to the employee. The difference between these two ways is
the difference in the denominator.

Response at 12 (emphases in original).

The Union asserts that "the first error rate expression, which is based
on the number of work samples reviewed by supervisors, can lead to seriously
inaccurate results." Id. According to the Union, the essence of the
inaccuracy is that errors made with respect to one subclass of an employee's
work are not representative of the employee's work for the entire year, which
performance ratings are intended to reflect. The Union notes that under the
error rate expression in Proposal 3, "management, knowing the measurement
unit to be used, is free to specify any particular value as the performance
standard." Id.

The Union contends that the Agency's contention
that Proposal 3 requires management to review 100 percent of the work done by a
classifier in order to rate that employee is incorrect. The Union states that
"[t]he requirements of [Proposal 3] can be met through the use of sampling
techniques; however, those sampling techniques would have to meet the
requirements, well established in the statistical community, that make a sample
truly representative of the whole." Id. at 13. The Union asserts that
"the risk of an adverse rating based upon the use of an unrepresentative sample
is a significant adverse effect of management's exercise of its right to
establish performance standards." Id.

Citing American Federation of Government Employees, Local 3172 and
U.S. Department of Health and Human Services, Social Security Administration,
Vallejo District Office, 35 FLRA 1276 (1990) (Vallejo
District), the Union argues that the Authority has held that proposals,
like Proposal 3, which concern the methodology used in compiling statistical
data about the performance of an employee, are negotiable procedures under
section 7106(b)(2) of the Statute because they do not concern the establishment
or content of the performance standards themselves. The Union asserts that
Proposal 3 "leaves management completely free to choose the specific error rate
it wishes to use as a performance standard and . . . leaves management with a
wide choice of sampling techniques constrained only by the requirement that
they result in [an] error rate that is representative of all the employee's
work." Id.

B. Analysis and Conclusions

For the following reasons, we are unable to
determine the intended meaning of the proposal based on the record before us
and, therefore, must dismiss the petition as to Proposal 3.

Proposal 3 would require the Agency to express error rates in the form
of a fraction. The denominator of the fraction would be the total number of
patent applications worked on by a classifier or the total number of markings
required of a classifier during a rating period. The numerator of the fraction
would be the "actual number of errors" found in a review of the classifier's
work product.

It is not clear to us what the Union means by the phrase "actual number
of errors." From an example used by the Union, it appears that it intends the
phrase "actual number of errors" to mean the number of errors found in a
statistically valid sample. See Response at 12. Under this
interpretation, if an employee worked on 4000 patents during an appraisal year
and a review of a statistically valid sample of 120 of those patents showed
12 errors, the numerator of the fraction would be 12.

However, the Union also describes the effect of
the proposal as requiring the use of techniques similar to polling techniques,
by which it is possible to determine, based on a statistically valid sample of
a portion of the whole, the presence of a given factor in the whole. See
Response at 13. The Union's statements in this regard suggest that the
numerator is not intended to be the number of errors found in the sample, but
rather is intended to be the number that results from multiplying the error
rate found in the sample times the total number of patents worked on during the
appraisal year. Under this interpretation, using the example set forth above,
the error rate for that sample would be 10 percent (12 errors out of a
sample of 120 patents) and, multiplying that percentage times the total number
of patents worked on (4000), the numerator would be 400.

Under the first interpretation, the proposal
would not produce a statistically valid representation of the actual number of
errors in the total number of patents worked on during an appraisal year
(unless the Agency sampled the employee's entire work product for the year).
Thus, the proposal would not result in an accurate evaluation of employee
performance as required by 5 U.S.C. § 4302. Interpreted in this
manner, the proposal would be inconsistent with law and nonnegotiable.

However, under the second interpretation, the
proposal would produce a statistically valid representation of the actual
number of errors in the total number of patents worked on during an appraisal
year and, as a result, would produce an accurate evaluation of employee
performance as required by 5 U.S.C. § 4302. Interpreted in this
manner, the proposal would be consistent with law and would constitute a
negotiable methodology for measuring the quality of classifiers' work under
section 7106(b)(2) of the Statute. See, for example, VA,
Portland; Vallejo District.

We are unable to determine which interpretation
of the proposal represents the Union's intent. Because we are unable to
determine the intended meaning of the proposal, we are unable to determine
whether the proposal would permit an accurate evaluation of employee
performance consistent with the requirements of 5 U.S.C. § 4302.
We conclude, therefore, that the record in this case is not sufficient for us
to rule on the negotiability of the proposal. It is well established that the
parties bear the burden of creating a record upon which the Authority can make
a negotiability determination. National Federation of Federal Employees,
Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'gNational Federation of Federal Employees, Local 1167 and Department of the
Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force
Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts
at its peril. Consequently, we will dismiss the Union's petition for review as
to Proposal 3. SeeInternational Association of Machinists and
Aerospace Workers, Local Lodge 830 and U.S. Department of the Navy, Naval
Ordnance Station, Louisville, Kentucky, 40 FLRA 354, 357 (1991).

VI. Proposal 4

Section 24. Patent Classifiers, Project
Work

K. Any time used to redo work that was
otherwise correctly done as a result of a management directed change in the
requirements for a classification order shall be accounted for separately from
the time originally assigned to the project.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 4 directly
interferes with management's rights to direct employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute "because it forces the Agency to
credit the employee with non-production time in violation of the performance
standards." Statement at 14. The Agency states that:

[w]hen employees lead a project, they are
assigned a total number of hours in which it must be completed. Employees are
specifically rated on their ability to overall manage the project by
satisfactorily completing the project within this time. Time is either charged
to the project (and counted against the total time) or it is not counted as
production time.

Id.

The Agency interprets Proposal 4 as requiring it to "credit employees
working on a project with time to 'redo' certain work 'separately from the time
originally assigned to the project.'" Id. at 15. The Agency asserts that
"[t]his separate accounting [of time] can only mean that the time is not
counted against the total assigned to the project and is thus non-production
time." Id. The Agency argues that "such non-production time is
nonnegotiable." Id. (citing National Treasury Employees Union and
U.S. Department of Health and Human Services, Office of Hearings and
Appeals, 44 FLRA 293 (1992) (Office of Hearings and Appeals)).

The Agency also contends that Proposal 4 "is not an appropriate
arrangement for the reasons discussed in relation to [Proposal 1]." Id.
According to the Agency, "there is no adverse [e]ffect from the exercise of
management's right to evaluate employees on an aspect of their job
responsibilities." Id. at 9. The Agency also argues that even if
Proposal 4 is intended to ameliorate some adverse effect, it excessively
interferes with management's rights under section 7106(a)(2)(A) and (B) of the
Statute.

2. Union

The Union states that Proposal 4 "is designed to
generate information about an employee's performance that management may
consider in the performance evaluation process." Response at 14 and Petition at
7. According to the Union, when management changes rules that classifiers must
follow, management expects employees to redo work that was in progress prior to
the rule change and no credit is given to the employee for the work done before
the change. The Union asserts that "the principal reason why employees have not
been credited with extra work required to accommodate . . .
management changes is that no reliable information was available to quantify
the actual amount of time spent on this extra work." Id. The Union
states that Proposal 4 "is designed to create the required information."
Id.

The Union asserts that Proposal 4 "does not require that management
either change the relevant performance standard or the evaluation given to the
employee as a result of doing the extra work." Id. The Union states that
Proposal 4 "does not even require management to credit the employee with the
extra work done, although it obviously allows management to give the employee
such credit." Id. Further, the Union states that "[t]here is nothing in
either the language or the explanation of the meaning of [Proposal 4] that
requires anything more than generating information about an employee's
performance that management may consider in the performance evaluation
process." Response at 15. Relying on Chula Vista District, 38 FLRA at
254, the Union argues that proposals requiring management to maintain a record
of specific performance-related information are negotiable.

B. Analysis and Conclusions

By its plain wording, Proposal 4 requires the
Agency to maintain a separate record of the time employees spend redoing, as a
result of a management-directed change in the requirements for a patent
classification, work that was otherwise correctly done. We find, consistent
with the Union's statements, that Proposal 4 does not require the Agency to
change the applicable performance standard, credit the employee with the work
accounted for under Proposal 4, or evaluate an employee differently based on
the accounting of work specified in the proposal. Rather, the proposal merely
requires the Agency to maintain a separate record of specific
performance-related information. The proposal does not specify the manner in
which management must use the recorded information.

Proposals that require management to maintain a
record of specific performance-related information, but do not dictate how
management will use that information, do not directly interfere with
management's rights under section 7106(a)(2)(A) and (B) of the Statute. Rather,
such proposals constitute negotiable procedures under section 7106(b)(2) of the
Statute. See, forexample, Chula Vista District, 38
FLRA at 254; POPA, 25 FLRA at 411-12. Accordingly, we conclude
that Proposal 4, by only requiring the Agency to maintain a separate record of
specific performance-related information, does not directly interfere with
management's rights under section 7106(a)(2)(A) and (B). Rather, Proposal 4
constitutes a negotiable procedure. SeePTO, 47 FLRA
at 52-53.

In so concluding, we note that this case is
distinguishable from Office of Hearings and Appeals. In Office of
Hearings and Appeals, we found that two provisions that sought to exclude
the travel time used in connection with an office relocation from the time
considered available for employees to perform their work and a provision which
sought to preclude management from holding employees accountable for delays in
case processing related to the relocation were nonnegotiable because they
directly interfered with management's rights to direct employees and assign
work. We found that the provisions were nonnegotiable because the first two
provisions required management to take into account specific factors in
assessing employees' work performance, and the third provision prohibited the
agency from holding employees accountable for their work performance in the
situations described in the provision. In this case, as discussed above, the
proposal does not dictate how management will use the recorded information
described in the proposal. Therefore, we find that the proposal in this case is
distinguishable from the provisions in Office of Hearings and
Appeals.

VII. Proposals 5 and 6

Proposal 5

Section 24. Patent Classifiers, Project
Work

N. Within two months of the end of the fiscal year management shall
report to the Association a description of each major error found under Element
II, Project Documentation, for any Patent Classifier. Management shall also
report any major errors it has excused and the basis of the excuse. The
reports, including a description of why a particular action is considered to be
an error, shall be at a level of detail such that they can be used as
precedents for future cases.

Proposal 6

Section 24. Patent Classifiers, Project
Work

O. Within two months of the end of the fiscal year management shall
report to the Association representative samples of each type of minor errors
found under Element II, Project Documentation, for any Patent Classifier.
Management shall also report any minor errors it has excused and the basis for
the excuse. The reports shall be at a level of detail such that they can be
used as precedents for future cases.

[Only the underlined portions are in dispute.]

A. Positions of the Parties

1. Agency

The Agency states that the new performance appraisal plan for
classifiers characterizes errors "for the first time[]" as "major" and "minor."
Statement at 16. According to the Agency, Proposals 5 and 6 "require the Agency
to report to the Union descriptions of all major and minor errors found or
excused in Critical Element II." Id. The Agency states that it "does not
object to the negotiability of the reporting aspects of these proposals."
Id. However, the Agency "strongly objects . . . that these proposals
must be in such detail to be used as precedents for future cases." Id.
The Agency interprets Proposals 5 and 6 as "creating a right of an
employee to rely upon these reports as justification for [his or her] actions
so that the Agency could not find either a major or minor error in rating the
employee's performance as long as the employee found some 'precedent' to
support his or her action." Id. at 17.

The Agency states that because the Union has
explained that it intends to use the reports as precedents when evaluating
grievances and presenting grievances to arbitrators, the Agency does not accept
the Union's statement that the proposals "'merely specif[y] the level of detail
that is to be included in the reports'" and do not "'require that one decision
be used as precedent for another.'" Id. at 17 (quoting Petition at 9).
The Agency asserts that the proposals "attempt[] to create a body of past work
products which will dictate whether employees may be found to have committed an
error--regardless of whether regulations, policies or work instructions exist
which are different." Id. at 17-18. The Agency asserts that because all
employees will rely upon the same precedents, the proposals, in effect,
"establish a uniform performance standard for all employees performing the same
job." Id. at 18. The Agency argues, therefore, that Proposals 5 and 6
would have the same effect as a proposal found nonnegotiable in POPA, 25
FLRA at 388, because it established a uniform performance standard for
employees.

2. Union

The Union states that Proposal 5 "is intended to
generate information on what management considers to be a 'major error' in the
work of project classifiers." Petition at 8. The Union states that Proposal 6
is intended to generate information on "'representative samples' of each type
of 'minor' error found by management." Id. at 9. According to the Union,
"[t]he formalized concept of 'major' and 'minor' errors is brand new and has
not previously been used in the evaluation of patent classifiers." Id.
at 8. The Union asserts that the performance appraisal plan does not define
what is meant by the terms "major error" and "minor error."

The Union states that it recognizes that in
applying the concepts of major and minor errors, when measuring the quality of
a professional's work product, the Agency has "an inherent need to exercise
some judgment and a limited amount of subjectivity." Id. The Union
further states that "[t]o accommodate management's need while at the same time
accommodating the employee's need for a clear exposition of what is required
and to accommodate employee desires for equal treatment, the [Union] has
proposed . . . that the [Union] is to be given a report of how these standards
are actually applied." Id. The Union asserts that the proposals "do[]
not require that one decision be used as precedent for another." Id.
at 9. The Union also asserts that the proposals "merely specif[y] the
level of detail that is to be included in the reports." Id. The Union
states that Proposals 5 and 6 only require management to provide a report of
errors found and excuses accepted under the newly created categories of major
and minor errors and "do[] not dictate how management will use the information"
in the reports. Response at 17. The Union argues that the Authority has held
that proposals which require management to maintain a record of specific
performance-related information, but do not dictate how management will use
that information are negotiable. In support of this position, the Union cites
Chula Vista District, 38 FLRA at 244 and American Federation of
Government Employees, Local 3272 and Department of Health and Human Services,
Social Security Administration, Chicago Regional Office, 34 FLRA 675
(1990).

B. Analysis and Conclusions

As the Agency acknowledges, the plain wording of
Proposals 5 and 6 "require[s] the Agency to report to the Union descriptions of
all major and minor errors found or excused." Statement at 16. The Agency "does
not object to the negotiability of the reporting aspects of these proposals."
Id. However, the Agency claims that, in addition to the reporting
requirement, Proposals 5 and 6 would allow employees to rely upon the reports
as justification for their actions and would preclude the Agency from finding
either a major or minor error in rating employees' performance if employees
identified some precedent to support their action.

To the extent that the Agency interprets
Proposals 5 and 6 as limiting the Agency's discretion to find either a
major or minor error in rating an employee's performance under its new
performance appraisal plan, we find that such an interpretation is not
consistent with the plain wording of the proposals and is not supported by the
record. The Union specifically states that Proposals 5 and 6 "merely
specif[y] the level of detail that is to be included in the reports" and do not
"require that one decision be used as precedent for another." Petition at 9.
The Union's explanation of Proposals 5 and 6 is consistent with the plain
wording of those proposals and we adopt it for the purposes of this decision.

Consistent with the Union's statement of intent, Proposals 5 and 6
merely require the Agency to provide the Union with detailed reports of the
major and minor errors found by the Agency under the new Plan which the Union
and employees may use to determine what constitutes errors in the performance
of patent classification duties. In this regard, we interpret the term
"precedent" consistent with our interpretation of that term in PTO, 47
FLRA at 50-51. In PTO, we found that the term "precedent" means
"'[a] course of conduct once followed which may serve as [a] guide for future
conduct[,]'" or "'a preceding instance or case that may serve as an example for
or a justification in subsequent cases.'" Id. at 51 (brackets in
original, citations omitted).

In sum, we find that Proposals 5 and 6 only
require that the Agency provide guidance for unit employees and do not limit
the Agency's discretion to find either a major or minor error in rating an
employee's performance under its new Plan or require the Agency to incorporate
into its performance standards such guidance. Seeid.
Consequently, Proposals 5 and 6 do not directly interfere with the Agency's
rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees
and assign work. Further, inasmuch as the Agency does not object to the
negotiability of the requirement that the Agency provide reports of the errors
found by the Agency, we conclude that Proposals 5 and 6 are negotiable.

VIII. Proposal 7

Section 25. Patent Classifiers, Post Work

E(2). Management shall identify in the classifiers' performance
appraisal plan the circumstances under which it will consider that a Post
Classifier has committed an error in the assignment of an application even
though (1) an examiner has, or would have, accepted the application for
examination purposes from the Post Classifier, or (2) the Post Classifier
relied on an informal understanding between patent examiners which was contrary
to written definitions or classification rules. If the Performance Appraisal
Plan fails to explicitly set forth such circumstances, then classifiers shall
be entitled to assume that the two identified situations are not errors for
evaluation purposes.

A. Positions of the Parties

1. Agency

The Agency claims that Proposal 7 "forces the
Agency to amend the performance appraisal plan to consider certain factors in
its evaluation of employees[,]" and by doing so, the proposal directly
interferes with management's right to evaluate employees. Statement at 19. The
Agency asserts, therefore, that the proposal directly interferes with its
rights to direct employees and assign work under section 7106(a)(2)(A) and (B)
of the Statute.

According to the Agency, "post classification
work" involves resolving disputes or confusion concerning the proper
classification of a patent application. The Agency states that under that
process:

Classifiers initially review the patent
application and classification definitions to determine the proper
technological area to which the application should be assigned. If the
classifier is not satisfied, he or she will use other resources, such as
seeking the advice of fellow classifiers. The evaluation of the final
assignment made by the classifier is based upon the area of technology to which
the case is assigned and the clarity and completeness of the reason(s)
presented for the assignment.

Id.

The Agency asserts that Proposal 7 "specifies two particular
circumstances that the Agency must consider in evaluating the employee's
performance of this function." Id. According to the Agency, "the two
circumstances identified by the Union are possible intermediate actions by the
classifier which may or may not be relevant in assessing the reasonableness of
a particular assignment." Id. at 20. The Agency states that Proposal 7
"is objectionable because it mandates that the Agency willconsider these two circumstances." Id. (emphasis in original).
The Agency argues that the proposal "would require that the Agency modify its
performance expectations in light of factors specified in the proposals."
Id. The Agency asserts that the proposal "is not saved by the fact that
it allows the Agency to prescribe the exact circumstances when those factors
will apply" because "the Agency is required to specifically amend the critical
elements in the [Plan] or the Agency may not find that the employee committed
an error." Id.

2. Union

The Union states that Proposal 7 "is intended to
elicit specific direction from management in two particular situations in which
there is known controversy regarding the proper action to be taken by an
employee." Petition at 10. According to the Union, at present, "no employee can
be assured that the supervisor who will rate him will be the same supervisor
who authorized the performance when it occurred[.]" Id. The Union states
that, for this reason, it "desires to have management direction be written in
the performance appraisal plan." Id.

Responding to the Agency's objection that
Proposal 7 requires management to consider the circumstances specified in the
proposal, the Union argues that National Federation of Federal Employees,
Local 2096 and U.S. Department of Navy, Naval Facilities Engineering Command
Western Division, 36 FLRA 834, 835 (1990) (Naval Facilities),
supports the Union's position. The Union asserts that Proposal 7 is like the
proposal found negotiable in Naval Facilities because Proposal 7
"does not obligate the [A]gency to change any of its existing performance
standards, nor would it inhibit the [A]gency in promulgating new standards."
Response at 19. The Union asserts, further, that the proposal does not require
the Agency to revise any performance evaluations based upon the specified
circumstances. The Union states that "the sole objective of [Proposal 7] is to
discover what performance management is seeking, so that employees may conform
their performance to management's desires." Id. The Union states that in
OPM, 28 FLRA at 720, the Authority "held negotiable proposals which
require management to provide written guidance and reference materials
necessary for the satisfactory performance of a job." Id.

The Union also argues that Proposal 7 is an
appropriate arrangement for employees adversely affected by management's right
to direct employees under section 7106(b)(3) of the Statute. The Union contends
that "[t]he uncertainty resulting from the failure of management to provide
clear and unambiguous instruction on how to handle the identified situations is
an adverse effect upon the employees." Id. The Union asserts that
Proposal 7 "overcomes the adverse effect by providing an employee with
appropriate guidance." Id. According to the Union, management will
benefit from the proposal because "employees are aware of how management
expects a particular situation to be handled." Id. The Union states that
it does not perceive any impact that Proposal 7 would have on management's
exercise of its rights. Therefore, the Union argues that Proposal 7 does not
excessively interfere with management's rights.

B. Analysis and Conclusions

Initially, we find that the Union's assertion that "[t]he sole
objective of [Proposal 7] is to discover what performance management is
seeking, so that employees may conform their performance to management's
desires" is not consistent with the wording of the proposal. Response at 19.
Proposal 7 is not as limited as the Union suggests. Rather, as worded, this
proposal places a restriction on the Agency's ability to consider that a
classifier has committed an error in the assignment of an application. That is,
where either of the two conditions that are specified in the proposal is
present, the Agency may not consider an assignment that meets either of the
conditions to be an error on the part of a classifier unless the Agency has
specified in the classifiers' performance appraisal plan the circumstances in
which actions meeting either of the two conditions will be considered as
errors.

As we set forth in detail in our discussion of Proposal 2,
proposals that prohibit management from holding employees accountable for work
performance directly interfere with the rights to direct employees and assign
work under section 7106(a)(2)(A) and (B) of the Statute. By restricting the
Agency's ability to consider a classifier's work performance in error, Proposal
7 prohibits the Agency from holding employees accountable for that work
performance. Thus, Proposal 7 has the same effect as Proposal 2.

However, if Proposal 7 merely incorporated into the contract a
requirement imposed by the laws governing performance appraisal, it would be
negotiable. While 5 U.S.C. § 4302 requires that performance standards and
elements for an employee's position be communicated to
the employee, that section does not require that all potential errors and
deficiencies be set forth in the employee's performance appraisal plan itself.
Rather, performance standards may be fleshed out and implemented in detail, or,
expressed another way, given content during the appraisal period. See,
for example, Rogers v. DODDS; DePauw v. ITC; Wilson v.
DHHS. Seealso, for example, Chaggaris v. GSA;
Williams v. DHHS; Donaldson v. Labor. Proposal 7 requires more
specificity in the performance standards themselves than is required by section
4302 and, consequently, it cannot be said to require merely that the Agency
exercise its rights to direct employees and assign work in accordance with
applicable law. Moreover, similar to Proposal 2, Proposal 7 exceeds the legal
requirements imposed by section 4302 by prohibiting the Agency from treating an
employee's action as an error unless the performance standards themselves
explicitly provide that such an action constitutes an error. That is,
immunizing employees from accountability for errors is not a requirement of
section 4302. Rather, as we discussed in conjunction with Proposal 2,
section 4302 requires that employees be informed of deficiencies in their
performance during the appraisal period and given an opportunity to improve. We
find that Proposal 7, like Proposal 2, directly interferes with management's
rights to direct employees and assign work under section 7106(a)(2)(A) and (B)
of the Statute.

We now turn to the question of whether Proposal 7 is negotiable as an
appropriate arrangement under section 7106(b)(3) of the Statute notwithstanding
the fact that it directly interferes with management's rights to direct
employees and assign work. As we discussed in conjunction with Proposals 1 and
2, to make this determination we apply the analytical framework established in
KANG, 21 FLRA at 31-33.

As to the issue of whether Proposal 7 constitutes an arrangement, we
will assume, without deciding, that it does. However, we find that it
excessively interferes with management's rights to direct employees and assign
work. In this regard, we find that the proposal offers significant benefits to
employees. Specifically, it would limit the Agency's ability to hold them
responsible for errors that are not explicitly defined in their performance
standards and by extension would limit the potential for negative effects on
their performance evaluations.

The proposal imposes a significant burden on management. Under the
proposal, the Agency would be required to anticipate at the time that it
prepares the performance plan all possible circumstances in which a
classifier's assignment of an application would be erroneous notwithstanding
the presence of either of the two conditions specified in the proposal.
Although many such circumstances would be reasonably foreseeable, requiring the
Agency to predict all such circumstances in advance imposes a significant
burden on it. Under Proposal 7, absent the ability to anticipate in advance all
possible scenarios in which actions coming within the scope of the proposal
would be erroneous, the Agency would be foreclosed from holding employees
accountable for their actions without regard to the particular circumstances
involved. We find that the burden placed on the Agency's ability to hold
employees accountable for their performance outweighs the benefits that the
proposal affords to employees and that the proposal excessively interferes with
management's rights to direct employees and assign work. Consequently, we
conclude that Proposal 7 does not constitute an appropriate arrangement within
the meaning of section 7106(b)(3) of the Statute. CompareCorps of
Engineers, Walla Walla, 44 FLRA at 1173.(6)

In reaching this conclusion, we find that
Proposal 7 is distinguishable from Provision 11 in PTO, 47 FLRA at
34-37. As we stated in our discussion of Proposal 2, above, the burden on the
Agency from the requirement imposed by Provision 11 was slight because the
Agency retained the discretion to establish performance standards and elements
reflecting the work for which employees are responsible. Proposal 7 would
require the Agency to develop a comprehensive statement of possible errors that
a classifier could commit in the assignment of applications, a task that we
find more burdensome than the task of ensuring that performance elements and
standards reflect the work for which employees are responsible that was imposed
by Provision 11.

Accordingly, we conclude that Proposal 7 is
nonnegotiable.

IX. Order

The Agency must negotiate on request, or as otherwise agreed to by the
parties, concerning Proposals 4, 5, and 6.(7) We dismiss the petition for review as to Proposals 1, 2, 3,
and 7.

Dissenting Opinion of Member Armendariz

For the following reasons, I disagree with my colleagues' conclusions
that Proposals 2 and 7 are nonnegotiable.

Proposal 2

According to the Union, the Agency "has established the [Manual of
Patent Examining Procedure (MPEP), the Development and Use of Patent
Classification Systems (DUPACS), and the United States Patent Classification
Practice and Procedure (USPCPP)] as the core documents that define what a
patent classifier is expected to do." Response at 10. Because the Agency does
not dispute the Union's description of the MPEP, DUPACS, and USPCPP, I adopt
that description in my analysis of Proposal 2. The listed manuals set forth
basic requirements that govern classifiers' performance of their jobs. These
manuals are referenced in Critical Element IV of the classifiers' performance
standards. See Petition, Attachment 3, the Plan at 5.
Additionally, I note that the guidelines developed by management "to assist
[supervisors] in rating [c]lassifiers" instruct supervisors on the use of
DUPACS in evaluating classifiers. Id., Attachment 3, the Guidelines at
1.

The plain wording of Proposal 2 provides that
any classification practice or procedure set forth in the listed manuals will
not be considered an error unless employees have been given prior notice that
the practices or procedures in the manuals have been changed. The Union states
that Proposal 2 "requires management to provide a written countermand only
to the work rules set forth in these manuals" and "does not apply to other
written directives or any oral directives." Response at 10. Based on the
plain wording of the proposal and the Union's explanation, I find that
Proposal 2 concerns the practices and procedures in the three manuals set
forth in Critical Element IV and referred to in the Guidelines. I interpret
Proposal 2 as precluding the Agency from holding classifiers accountable for
work performed consistent with the performance standards in the manuals only
when the Agency changes the substantive requirements of the performance
standards in the manuals without notifying classifiers of the new requirements.
I disagree with my colleagues' interpretation that Proposal 2 prevents the
Agency from holding an employee accountable for work performance where the
employee fails to follow practices or procedures that are not in the manuals
but are called for under different authorities that are known to the
classifier.

In my view, Proposal 2, in essence,
incorporates the requirements of 5 U.S.C. § 4302(b), namely,
that the Agency communicate to patent classifiers the performance standards and
critical elements that are necessary for them to perform their jobs in a
satisfactory manner and that the Agency ensure that employees are aware in
advance of the performance standards and critical elements of their positions
before they are held accountable under those standards and elements. SeeMelnic v. Housing and Urban Development, 42 MSPR 93 (1989), aff'd
mem., 899 F.2d 1228 (Fed. Cir. 1990); Williams v. Department of
Health and Human Services, 30 MSPR 217 (1986) (Williams); Baker
v. Defense Logistics Agency, 25 MSPR 614 (1985), aff'd,
782 F.2d 1579, 1583 (Fed. Cir. 1986); Cross v. Department of the Air
Force, 25 MSPR 353, 357 (1984) (Cross), aff'd mem.,
785 F.2d 320 (Fed. Cir. 1985). SeealsoU.S. Department
of Veterans Affairs and American Federation of Government Employees, Local
1765, 43 FLRA 216, 222 (1991) (under 5 U.S.C. § 4302(b)(2)
and 5 C.F.R. § 430.204(d)(1), each performance appraisal system
shall provide performance plans to employees at the beginning of each appraisal
period and retroactive application of a standard is inconsistent with the
statutory requirement that standards be communicated to the employees at or
before the beginning of the appraisal period for which they apply); U.S.
Department of Health and Human Services, Social Security Administration,
Chicago, Illinois and American Federation of Government Employees, Local
1346, 35 FLRA 1180, 1185-86 (1990) (under 5 U.S.C.
§ 4302(b)(2) an agency must apprise employees of the requirements
against which they are to be measured for purposes of performance
appraisal).

The majority states that a performance standard
need not be fully communicated to employees at the beginning of an appraisal
period but may be "fleshed out and implemented in detail" later in the
appraisal process. However, as the majority notes, "fleshing out" a standard
may not amount to rewriting or changing the standard. SeeWilliams, 30 MSPR at 219-20. SeealsoEibel
v. Department of the Navy, 857 F.2d 1439, 1443-44 (Fed. Cir. 1988). In
my view, Proposal 2 does not apply where the Agency is merely "fleshing
out" a standard during an employee's appraisal period by clarifying or more
fully explaining the performance requirements in the manuals. Rather,
Proposal 2 applies in circumstances where the Agency attempts to hold
classifiers accountable under a standard that substantively rewrites or changes
the performance requirements in the manuals without first communicating the
standard to classifiers.

Although Proposal 2 precludes the Agency
from holding classifiers accountable under a standard which substantively
rewrites or changes the performance requirements in the manuals unless the
Agency has communicated that standard to the classifiers, I find that, in
essence, it incorporates the requirement in 5 U.S.C.
§ 4302(b)(2) that the Agency communicate to patent classifiers the
performance standards and critical elements that are necessary for them to
perform their jobs in a satisfactory manner before they are held accountable
under those standards and elements.

The exercise of management's rights under section 7106(a)(2) is subject
to "applicable laws." SeeUnited Power Trades Organization and U.S.
Department of the Army, Corps of Engineers, Walla Walla, Washington,
44 FLRA 1145, 1158-60 (1992). Because, in my view, Proposal 2
essentially incorporates a statutory limitation on the exercise of management's
rights to direct employees and assign work, I would find that Proposal 2 does
not directly interfere with those rights and is negotiable. Seeid.

Further, as I have concluded that
Proposal 2 does not directly interfere with management's rights to assign
work and direct employees under section 7106(a)(2)(B), I find that it is
unnecessary to address the parties' arguments as to whether Proposal 2
constitutes an appropriate arrangement within the meaning of section 7106(b)(3)
of the Statute.

Proposal 7

Under Critical Element IV of the Plan,
classifiers are required to "[a]ssign applications . . . ."
Petition, Attachment 3, the Plan at 5. In the Guidelines for rating
Critical Element IV, supervisors are instructed that "[t]he evaluation of this
element is based on the number of alterations or reversals of a post
classifier's assignments." Id., the Guidelines at 14. I find, based on
the record, that Proposal 7 concerns which assignments will be altered or
reversed, and thus considered errors, under Critical Element IV of the
classifiers' performance standards.

Based on the record, I interpret Proposal 7 to
preclude the Agency from holding employees accountable under a standard which
substantively changes the accepted practices for assigning applications in the
circumstances identified in the proposal, unless the Agency has notified
classifiers that the practice is no longer acceptable.

Based on that interpretation, I find that
Proposal 7, like Proposal 2, incorporates the limitation on employee
evaluations provided by 5 U.S.C. § 4302(b), namely, that an
agency cannot substantively rewrite or change the standards and elements by
which employees are evaluated without prior notice to the employees of such a
change. SeeCross, 25 MSPR at 358 n.3. I also find,
consistent with my disposition of Proposal 2, that 5 U.S.C.
§ 4302(b) constitutes an applicable law within the meaning of section
7106(a)(2) of the Statute and, thus, is a permissible limitation on the
exercise of management's right to direct employees and assign work. Because
Proposal 7 effectively incorporates a statutory limitation on management's
rights, I would find, consistent with my disposition of Proposal 2 above,
that Proposal 7 does not directly interfere with the exercise of management's
rights to direct employees and assign work and is, therefore, negotiable.

In view of my conclusion that Proposal 7
does not directly interfere with management's rights, I find that it is
unnecessary to address the parties' arguments as to whether Proposal 7
constitutes an appropriate arrangement within the meaning of section 7106(b)(3)
of the Statute.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The separate opinion
of Member Armendariz, dissenting as to Proposals 2 and 7, appears at the end of
this decision.

2. Specifically, Element IV, which
concerns "Application Assignment," lists as one of three "major activities"
"Write reasons for assignment on form PTO-447 as set forth in DUPACS, the MPEP
or the U.S. Patent Classification Practice and Procedure." Petition, Attachment
3.

3. The Guidelines do not define the
acronym "SPC"; however, it appears from the context that it refers to a
supervisor.

4. With respect to this conclusion, we
reiterate and emphasize that in our view: (1) the performance plan to which
this proposal is addressed does not as a whole require compliance with the
specified manuals in all circumstances, and (2) the proposal is not limited to
the particular performance element in that plan that specifically references
those manuals.

5. In this regard, Proposal 2 is
distinguishable from the proposal that we concluded was an appropriate
arrangement in Office of Thrift Supervision, 44 FLRA at 71-73. That
is, the burden imposed by Proposal 2 is not as readily avoidable as that
involved in Office of Thrift Supervision. Also, we note that unlike the
situation in Office of Thrift Supervision, the Agency here has not
already agreed to the obligation of providing written countermands that
underlies the limitation on holding employees accountable for their work.

6. In its petition and response, the
Union has requested that where sections involve "multiple concepts," the
Authority "segregate the concepts" and address the negotiability of each
concept independently. Petition at 2; Response at 1. The Union does not
elaborate on what constitutes a concept. As to this particular proposal, the
Union's arguments address the proposal as a whole and do not separately discuss
individual portions of the proposal. Absent guidance from the Union regarding
what it might intend to constitute separate concepts within this proposal, we
will not attempt to parse the proposal but will treat it as a whole.

7. In finding that these proposals are
negotiable, we make no judgment as to their merits.